Terms and Conditions
TENANTS TODAY RENT PROTECTION PLAN
Terms and Conditions
THIS AGREEMENT (this “Agreement”) is entered into upon the date of the purchase of products on the Tenants.Today website (the “Effective Date”), by and between Tenants Today, LLC, a Colorado limited liability company (“Company”), and the purchaser of the product (“Landlord”). Company and Landlord may be individually referred to as a “Party” and collectively referred to as the “Parties” to this Agreement.
WHEREAS, Company is in the business of offering rental solutions and purchasing receivables in connection with tenant defaults under commercial and residential leases;
WHEREAS, Landlord is the owner in interest of real property commonly known and numbered as defined in the purchase order (the “Property”);
WHEREAS, Landlord desires to participate in the Program to protect Landlord’s interest in the Property in the event of tenant defaults, and Company desires to permit Landlord to enter the Program subject to the terms and conditions herein; and
WHEREAS, Company and Landlord desire to enter into this Agreement to govern their relationship and respective rights and responsibilities hereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
DEFINITIONS AND CONSTRUCTION
Section 1.01 Incorporation of Recitals. The foregoing recitals are specifically incorporated in their entirety and made a part of this Agreement.
Section 1.02 Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
“Claim” or “Claims” refers to Landlord’s right, title, and interest in and to monetary damages owed to Landlord related to any Tenant’s default under a Lease. For purposes of this Agreement, a “Claim” shall be deemed to exclude any right to possession of a Unit.
“Lease” or “Leases” refers to leases for the possession of a Unit entered between Landlord and a Tenant.
“Program” means Company’s business of purchasing receivables related to Tenant defaults and provision of any other benefits under this Agreement, subject to the conditions and promises contained herein.
“Rent” means the payment charged to Tenant by Landlord under a Lease for possession of a Unit.
“Rental Term” means the term of a rental period as provided on a Lease.
“Tenant” means a person or entity with a legal right to occupy a Unit pursuant to a Lease during the Rental Term and that person’s agents.
“Unit” means a numbered dwelling unit within the Property.
Section 1.03 Rules of Construction. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. The words “include,” “includes,” and “including,” shall be deemed to be followed by the phrase, “without limitation.” The words “herein,” “hereof,” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof. The headings used in this Agreement are for convenience of reference only, and are not used to modify, define, or interpret any of its parts. No provision of this Agreement shall be construed for or against any of the Parties solely as a result of the fact that such Party was responsible for the drafting of such provision. The Parties further represent and state that each Party and/or its counsel has been given a full and fair opportunity to review the Agreement before execution.
Section 2.01 Enrollment; Set-Up Fee. Landlord shall become enrolled in the Program upon (i) execution of this Agreement by all parties thereto and (ii) payment of an initial set-up fee in the amount of Four Hundred Ninety-Five Dollars ($495.00).
Section 2.02 Purchase of Claims. Company shall purchase all Claims at a rate of Seventy Five Percent (75%) of the amount owed at the time of a Tenant’s default, up to a maximum amount of Eight Thousand Dollars ($8,000.00) per Claim. For each purchase of a Claim, Landlord shall execute and submit a setup form in the form of the document attached hereto as EXHIBIT A (“Setup Form”). For each Claim purchased by Company and sold by Landlord, Landlord shall pay to Company a Claim set-up fee of Four Hundred Ninety-Five Dollars ($495.00). The Setup Form shall be made available to Landlord via Company’s web portal.
Section 2.03 Purchase Events. Company shall only be obligated to purchase a Claim upon the occurrence of a “Purchase Event.” A Purchase Event shall occur upon a Tenant’s default under his or her payment obligation pursuant to a Lease and (i) if the Tenant vacates the Unit, upon the date the Tenant vacates the Unit or (ii) if the Tenant remains in the Unit, upon the date the Landlord posts a notice to quit (or similar notice depending on state law definitions) on the Unit subject to the Claim. In the event that a Purchase Event occurs by the posting of a notice to quit, Landlord shall be required to complete the Setup Form and transfer the Claim to Company prior to initiating any suit for possession against the Tenant. If Landlord fails to do so, this shall constitute a Repurchase Event as that term is defined in Section 2.08 of this Agreement.
Section 2.04 Provision of Relevant Information. Upon the occurrence of a Purchase Event and Landlord’s completion of the Setup Form, Landlord must promptly provide to Company any and all documentation relevant to Company’s ability to pursue a purchased Claim. This shall include, but is not limited to, the Lease between Landlord and Tenant, contact information for the Tenant, any ledgers of rent payments, relevant communications between Landlord and Tenant, notices to quit or other documents posted pursuant to any applicable eviction requirements, affidavits of service, complaints filed against the Tenant, summonses served upon the Tenant, and any other court filings in pending legal actions between Landlord and the Tenant.
Section 2.05 All Leases Are Subject to Program. Landlord and Company agree that the promises made herein shall apply to every Lease for possession of a Unit at the Property entered into after the Effective Date. This shall include Leases renewed after the Effective Date, either via their own terms (e.g. a month-to-month tenancy) or via separate agreement of Landlord and a Tenant.
Section 2.06 Landlord’s Representations and Warranties Concerning Claims, Units and Leases. With respect to each Claim, Unit, and Lease subject to a Purchase Event, Landlord makes the following representations and warranties to Company: (i) Landlord is not subject to any existing or threatened claims, lawsuits, or threats of legal action from any Tenant subject to a Claim; (ii) Landlord is not in default under the Lease and, and will remain, in full compliance with the Lease from which the Claim arises; (iii) Landlord has not breached any warranty, express or implied, in providing the pertinent Unit to its Tenant(s) including, but not limited to, any implied warranties of habitability provided under applicable law; (iv) the Lease is not subject to any defense, right of rescission, discount, allowance, set-off, offset, or counterclaim; the Claim is fully collectible; (v) no error, misrepresentation, negligence, fraud, or violation of law has occurred with respect to the Lease, including by any act or omission by any person; (vi) no provision or any part of the Lease violates any law, rule, regulation or order, including, but not limited to, any applicable usury laws; (vii) the Lease in question contains a provision which entitles Company to recover its attorneys’ fees and costs if it prevails in any claims made against the Tenant; and (viii) Landlord holds good and valid title to the Claim and no other person has any rights, interest, or claims in or to the Claim.
Section 2.07 Landlord Covenants. Landlord covenants that from and after the Effective Date, it will (i) make commercially reasonable efforts to mitigate any damages caused by a Tenant default including, but not limited to, listing vacant Units in online listing services, showing the unit to interested parties and, if necessary, hiring a broker to re-let the Unit, and (ii) maintain the Unit in a reasonable state of cleanliness. Landlord shall cooperate with and respond to requests of Company to demonstrate Landlord’s compliance with this covenant, including, but not limited to, disclosing listings or other advertisements to market the Property or engaging a broker or other real estate professional, and allowing inspection of the Unit upon reasonable notice. Landlord further covenants that, after posted a notice to quit on any Tenant’s Unit which is subject to a Claim, Landlord shall act swiftly to initiate eviction proceedings against the Tenant by the filing and service of a complaint in a court of competent jurisdiction seeking possession of the Unit subject to the Claim. Landlord’s failure to comply with these covenants, whether by failure of action or by actions that are deemed illusory in the sole discretion of the Company, shall be deemed a Repurchase Event subject to the repurchase provisions contained in Section 2.08.
Section 2.08 Repurchase Event. With respect to each Claim, Landlord makes the representations and warranties contained in Upon any breach by Landlord of any of the representations, warranties, covenants, or agreements contained in Sections 2.06 and 2.07 of this Agreement (a “Repurchase Event”), Company may immediately reverse any Purchase Event, and Landlord shall immediately repay all sums paid by Company under the applicable Setup Form(s) up to and including the date of the Repurchase Event. Upon the occurrence of a Repurchase Event, all of Company’s obligations under applicable Setup Forms shall be terminated. In addition, the Parties acknowledge that Company will expend a significant amount of money and resources in connection with Landlord’s participation in the Program, and the loss and damages Company would suffer as a result of a Repurchase Event are difficult to ascertain. Therefore, upon a Repurchase Event, Landlord shall pay liquidated damages. Landlord understands that the liquidated damages are not a penalty and that the liquidated damages are reasonable and proportionate to Company’s presumable loss and damages.
Section 2.09 Right to Setoff. In a Repurchase Event, Landlord must pay Company the Repurchase Price within five (5) business days of receiving Company’s demand. Company may set off or cause set off of any repurchase, indemnification, or other amounts owed by Landlord to Company from any amounts owed or to be remitted to Landlord.
Section 2.10 No Partnership. Nothing herein contained shall be deemed or construed to create a partnership or joint venture between the Parties. Neither Party shall take any action which could reasonably lead a third-party to assume that it has the authority to bind the other Party or make commitments on the other Party’s behalf.
Section 2.11 No Brokerage. Company is not a broker, finder, or agent, and its sole responsibility with regard to this Agreement is as expressly set forth herein. Company shall not incur any obligation or liability, contingent or otherwise, for brokerage, finder’s, or agent commissions or fees with respect to the Lease. Landlord shall defend, indemnify, and hold harmless Company in respect of any such obligation or liability based in any way on agreements, arrangements, or understandings claimed to have been made with any third-party.
REPRESENTATIONS; WARRANTIES; AND COVENANTS
Section 3.01 General Representations and Warranties. Each Party makes the following representations and warranties to the other Party on a continuing basis: (i) its execution, delivery, and performance of this Agreement have been duly authorized by all necessary action and do not contravene any applicable law or the provisions of any agreement to which it is bound; (ii) the individual executing this Agreement is duly authorized to do so; (iii) this Agreement constitutes the valid and binding agreement of the Party enforceable in accordance with its terms; and (iv) any information and documents furnished by it to the other Party for purposes of or in connection with this Agreement is true and correct and the information provided is complete enough so as not to be misleading.
Section 3.02 Landlord Representations and Warranties. Landlord makes the following representations and warranties to Company on a continuing basis: (i) Landlord holds good and valid title to the Property free and clear of any liens or encumbrances; (ii) no other person has any rights, interest, or claims in or to the Property; (iii) Landlord is in compliance with all applicable local, state and federal laws and regulations.
Section 4.01 By Landlord. Landlord may terminate this Agreement and Landlord’s participation in the Program by giving Company thirty (30) days’ prior written notice. Upon cancellation, any outstanding amounts owed by Landlord to Company shall become immediately due and payable by Landlord.
Section 4.02 By Company. Company may terminate this Agreement and Landlord’s participation in the Program by giving Landlord ten (10) days’ prior written notice. Upon cancellation, any outstanding amounts owed by Landlord to Company shall become immediately due and payable by Landlord.
Section 4.03 Immediate Termination by Company. Upon Company becoming aware of Landlord’s breach of any representation or warranty set forth in Section 3.02, Company may terminate this Agreement immediately upon written notice to Landlord. Any outstanding amounts owed by Landlord to Company shall become immediately due and payable by Landlord.
Section 5.01 Indemnification of Landlord. Company shall defend, indemnify, and hold harmless Landlord and its affiliates, and all of their respective officers, directors, agents, and employees (collectively, the “Landlord Indemnitees”) from and against any claims, suits, proceedings, causes of action, losses, liabilities, obligations, damages, fines, judgments, awards, costs and expenses of any nature (including reasonable attorneys’ fees) (collectively, “Third-Party Claims”) incurred by or asserted against Landlord Indemnitees caused by Company’s gross negligence or willful misconduct and only to the extent represented by the degree or percentage of fault attributable to Company. Company shall not be liable under this Agreement to indemnify Landlord with respect to damages which are ultimately determined to be wholly or partially due to the act, omission, negligence, or willful misconduct of Landlord or any third-party.
Section 5.02 Indemnification of Company. Landlord shall defend, indemnify, and hold harmless Company and its affiliates, and all of their respective officers, directors, agents, and employees (collectively, the “Company Indemnitees”) from and against Third-Party Claims incurred by or asserted against Company Indemnitees in any way relating to any act or omission or misconduct of Landlord under this Agreement.
Section 6.01 Notices. Any notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been given when received when given personally, by facsimile, or by electronic mail, upon acceptance or refusal for delivery after being placed in the United States mail, registered or certified, return receipt requested, postage prepaid, to the Parties’ respective addresses as set forth below:
Tenants Today, LLC
8400 East Prentice Avenue, Suite 1500
Greenwood Village, Colorado 80111
With a Courtesy Copy to:
Goodspeed & Merrill
Attn: Jay Hermele
7800 East Union Avenue, Suite 600
Denver, Colorado 80237
Section 6.02 Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter set forth herein. All previous understandings, agreements, and communications prior to the Effective Date, whether express or implied, oral or written, relating to the subject matter of this Agreement are fully and completely extinguished and superseded by this Agreement.
Section 6.03 Waiver. The failure or delay by a Party in exercising any right, power, or privilege under this Agreement shall not be deemed a waiver of such right, power, or privilege, nor shall any single or partial exercise thereof preclude any other further exercise of any right, power, or privilege under this Agreement. No waiver of any term of this Agreement shall be binding unless made by means of a written instrument signed by a duly authorized representative of the Party against whom enforcement of such waiver is sought. Any such waiver shall not constitute a future waiver of the same term or condition.
Section 6.04 Assignment. This Agreement is personal in nature, and, as such, neither Party may assign or transfer this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party.
Section 6.05 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures may be transmitted by any electronic means.
Section 6.06 Severability. In the event that any provision of this Agreement should be held to be void, voidable, or unenforceable, such provisions shall be modified to the minimum extent necessary to make such provisions enforceable, and the remaining portions shall remain in full force and effect to the extent that the benefits conferred on the Parties by this Agreement remain substantially unimpaired.
Section 6.07 Applicable Law. The substantive laws of the state of Colorado, without regard to conflicts of law provisions or principles, govern all matters arising out of, or relating to, this Agreement.
Section 6.08 Venue and Jurisdiction. Any disputes between the Parties arising from this Agreement shall be brought exclusively in binding arbitration in Denver, Colorado or within the state courts located in Denver County, Colorado, and the Parties agree to submit to the personal jurisdiction of such courts. THE PARTIES HEREBY WAIVE THEIR RIGHTS TO A JURY TRIAL IN ANY SUCH ACTION. The prevailing Party in any action or arbitration arising from this Agreement shall be entitled to recover its court costs, expenses, and reasonable attorneys’ fees.
Section 6.09 Force Majeure. Delay in performance or non-performance of any obligation contained in this Agreement caused by Force Majeure (as defined herein) shall not be deemed a default of such obligations during such time that the non-performing Party is prevented from performing such obligations. The term “Force Majeure” shall mean, without limitation, the following: acts of God, including weather emergencies; strikes or lockouts; acts of terrorism; epidemics or pandemics; or other similar or comparable cause or event not reasonably within the control of the non-performing Party. The Party affected by Force Majeure shall promptly notify the other Party, explaining in detail the full particulars and expected duration thereof, and shall use its best efforts to remedy the interruption or delay. In the event that the Force Majeure extends for more than 60 days, either Party may terminate this Agreement upon written notice thereof to the other Party.
Section 6.10 Miscellaneous.
(a) Except as otherwise provided herein, no amendment or variation of this Agreement shall be effective or binding upon the Parties unless it is set forth in writing and has been signed by an authorized representative of each of the Parties.
(b) Time shall be of the essence of this Agreement.
(c) Each Party shall perform such further acts, execute such further documents, and give such further assurances as may be reasonably required to give effect to this Agreement.
(d) No provision of this Agreement shall be construed for or against any of the Parties solely as a result of the fact that such Party was responsible for the drafting of such provision. The Parties further represent and state that each Party and/or its counsel has been given a full and fair opportunity to review the Agreement before execution.
(e) The captions and headings used in this Agreement are for convenience of reference only, and are not used to modify, define, or interpret any of its parts.
TENANT SETUP FORM
This Setup Form is executed in connection with that certain Rent Protection Plan Master Services Agreement by and between Tenants Today, LLC, a Colorado limited liability company (“Company”), and purchaser of product (“Landlord”) to which it is attached. Capitalized terms used and not otherwise defined herein shall have the respective meanings given to them in the Agreement.
(a) Landlord entered into a Lease (the “Lease”) with a (“Tenant”). Landlord will provide all information necessary to reasonably identify Tenant as requested by Company through the Company’s website (the “[Web Portal]”).
(b) The Lease was for possession of [unit #] (the “Unit”) at the Property.
(c) Tenant has breached the Lease by failing to make rent payments as required thereunder.
(d) Tenant is in arrears on Rent owed to Landlord.
(e) There is time remaining in the Rental Term.
(f) Tenant [has vacated the Unit] [remains in possession of the unit].
(g) If Tenant remains in possession of the Unit, Landlord certifies that it has initiated eviction proceedings against Tenant by the filing and service of a complaint in a court of competent jurisdiction, seeking possession of the Unit.
(h) Landlord hereby agrees to sell, and Company agrees to buy, all of Landlords interest, ownership, and rights in, under, and to the Claims against Tenant arising under the Lease for possession of the Unit for the purchase price which is equal to Seventy-Five Percent (75%) of the Rent due and owing by Tenant to Landlord under the Lease. Upon execution of this Setup Form, Landlord shall absolutely sell, transfer, convey, and assign all of Landlord’s interest, ownership, and rights in, under, and to the Claim and any successive claims that may arise out of or in connection with the Claim.